Speer v. United States
| Decision Date | 24 March 1981 |
| Docket Number | Civ. A. No. 3-79-0668-H. |
| Citation | 512 F. Supp. 670 |
| Parties | Carol E. SPEER, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
COPYRIGHT MATERIAL OMITTED
Larry Hayes, Law Offices of Windle Turley, P.C., Dallas, Tex., for plaintiff.
Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for defendant.
On July 27, 1976, Jerry Speer died at Parkland Memorial Hospital in Dallas, Texas, as a result of complications from a self-administered overdose of the drug Amitriptlyine. The difficult question which faces this Court is whether alleged negligence in treatment and services by Veterans Administration (VA) personnel at the Dallas VA hospital was the cause of Jerry Speer's suicide. Plaintiff Carol Speer, widow of Jerry Speer, asserts that her husband's suicide was a foreseeable result of the psychiatric treatment he received from Dr. George Winkelman, VA staff psychiatrist, and the drugs dispensed by VA pharmacists.
The Court is of the opinion that the facts, tragic though they be, will not support a finding of liability against Defendant United States.
On February 5-11, 1981, a non-jury trial was held in this case. Testimony from three medical experts focused on the medical history of Jerry Speer and the treatment he received at the VA. The evidence established that Speer suffered from a recurring history of depression, serious psychiatric problems and abuse of alcohol and drugs long before he had contact in 1976 with Dr. Winkelman and the Dallas VA hospital. On five occasions between 1971 and 1975, Speer received treatment at VA hospitals for depression and anxiety symptoms. His treatment included prescriptions for tranquilizers (such as Lithium and Valium), therapy group sessions, and a three week hospitalization in 1971 when he attempted suicide by drug overdose. Indications that Speer engaged in abuse of alcohol and "street drugs" (i. e., drugs not prescribed by treating physicians) are noted in his medical records for this period and are reported throughout the entire course of his treatment at the VA.
In December 1975, some eight months after his marriage to the Plaintiff, Speer sought psychiatric help at the Dallas VA hospital for a depression apparently triggered by a violent domestic argument. Lithium and counseling were prescribed by a Mental Hygiene Clinic doctor whose initial impression from the intake interview was that Speer suffered from alcoholism, drug abuse and a schizoid personality. At a follow-up appointment on January 12, 1976, Speer underwent a battery of psychological tests given by the assigned VA psychiatrist, Dr. George Winkelman. Diagnosing Speer as a "paranoid schizophrenic", Dr. Winkelman concluded that he "should respond to adequate doses of anti-depressant and anti-schizophrenic medications." Winkelman prescribed Etrafon, a drug which combines a tranquilizer and antipsychotic with an antidepressant, and placed Speer in a weekly therapy group.
Over the next five months, Speer participated fairly regularly in the group therapy sessions. He continued to receive prescriptions from Dr. Winkelman for Etrafon, and subsequently other drugs, in increasing numbers and higher dosage levels. The VA pharmacy records show that Etrafon was supplied to Speer as follows:
TOTAL NO
DATE PRESCRIPTION DAILY DOSAGE OF TABLETS
1-12-76 New up to 3 pills 90
2-05-76 Refill of 1/12 up to 3 pills 90
2-12-76 New 5 pills 150
3-04-76 Refill of 1/12 up to 3 pills 90
3-06-76 Refill of 2/12 5 pills 150
4-01-76 Refill of 2/12 5 pills 150
5-18-76 New 12 pills 360
5-26-76 New 8 pills 240
From January to March, 1976, Speer's emotional condition appeared to improve and he was functioning well in both work and personal situations. At some point in April, Speer began to decline; his wife and employer perceived changes in personal grooming and work habits, with symptoms of apathy, drowsiness and slurring of speech becoming more pronounced. Concerned that her husband's condition was a result of the prescribed Etrafon, Plaintiff Carol Speer contacted the VA hospital's Chief of Staff and a United States Senator. She received assurances that a review of Dr. Winkelman's treatment of her husband indicated no problems.
Subsequently, at a May 25 meeting, Carol Speer expressed her concern to Dr. Winkelman that Jerry was abusing Etrafon and alcohol. She advised Winkelman that she had destroyed some of Jerry's medication. Winkelman refused to remove Speer from the Etrafon treatment and offered hospitalization; Carol Speer left the VA hospital; Jerry remained behind in an agitated emotional state. After receiving emergency treatment of Etrafon at the hospital, Speer's emotional condition appeared improved, and he informed Dr. Winkelman that he had decided to see a private psychiatrist pursuant to his wife's wishes.
Later that same day, Jerry and Carol Speer visited Dr. Thomas Cook, a clinical psychologist, who recommended hospitalization for observation and treatment. The next day, however, Jerry asked Dr. Winkelman for a new Etrafon prescription, saying that he had decided to reject treatment by a private psychiatrist, and was going to separate from his wife and accept a job in Houston. Apparently assuming that Speer's supply of Etrafon had been destroyed by his wife, Dr. Winkelman gave him a prescription for 240 pills on May 26.
Thereafter, Speer again changed his mind and he entered Medical City Dallas Hospital for the period May 27-31, under the care of Dr. Jones (with whom Dr. Cook was associated). While in the hospital, Speer underwent psychological testing and was stabilized on two Etrafon a day. Upon Speer's discharge, Dr. Jones noted that he had a history of overdoses and drug abuse, and recommended continuing treatment with Lithium and therapy. On June 1, 1976, Speer saw Dr. Cook at a follow-up session. On June 10, 1976, Speer attended the VA therapy group and stated that he was abandoning treatment by VA and returning to the care of his wife. This was the last psychiatric treatment Speer received before his death.
Although the physical symptoms he had earlier exhibited appeared to abate for awhile, Speer's behavior in mid-June was once more marked by apathy, incoherence and motor problems. This was also apparently a period of domestic discord, and, under pressure from Carol to resume work or leave home, Speer disappeared to California for a few days. Returning by June 25, 1976, Speer exhibited a perceptible improvement in appearance and physical condition. By July 7, however, this improvement had dissipated into malaise and lack of mental awareness, and Carol once more warned Speer that he would have to leave home if he did not attempt to work.
Later that same morning, Jerry called Carol at work and said that he had taken two bottles of Etrafon pills. He was still conscious when Carol and the ambulance arrived. On admission to Parkland Memorial Hospital, Speer said that he had been taking 10-12 Etrafon a day in addition to self-prescribed dexedrine, and that he had consumed 400-500 Etrafon pills that morning.
Speer remained a patient at Parkland until July 27, 1976, when he suffered a third cardiac arrest, failed to respond to further therapy, and was pronounced dead at 1:50 A.M. The Pathology Laboratory at Parkland concluded that the cause of death was attributable to complications from an Etrafon overdose. The Dallas Medical Examiner listed the cause of death as "Amitriptlyine Intoxication" and the manner of death as suicide.
The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1970) removes the sovereign immunity of the United States for tortious conduct committed by its employees acting within the scope of their employment and makes it liable in the same manner and to the same extent as a private individual. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The Act establishes that as a prerequisite to maintaining a suit against the United States, a plaintiff must present notice of his or her claim to the appropriate federal agency. Mack v. Alexander, 575 F.2d 488, 489 (5th Cir. 1978). Only when the claim has been denied or six months have passed may a plaintiff bring suit in federal court on the claim. 28 U.S.C. § 2675(a).
Plaintiff filed a claim with the Veterans Administration on April 4, 1978, seeking damages on the grounds that her husband's suicide was caused by Dr. Winkelman's negligence both in prescribing excessive dosages of Etrafon and in monitoring Speer's treatment. Her claim was denied by the VA November 30, 1978, and this suit was filed May 25, 1979.
On December 31, 1980, the Court allowed the Plaintiff to amend her complaint in order to assert a claim for damages against the VA pharmacists for alleged negligence in dispensing prescriptions to Jerry Speer. The Government contests the Court's jurisdiction over this claim because the Plaintiff failed to file such a claim for administrative consideration.
The claim requirement serves the purpose of notifying the agency in order to (1) expedite the fair settlement of tort claims while easing court congestion and avoiding unnecessary litigation; and (2) provide fair and equitable treatment of private individuals when they deal with the Government. Adams v. United States, 615 F.2d 284, 288 (5th Cir.), rehearing denied, 622 F.2d 197 (1980). The purpose is not "to make recovery from the Government technically more difficult." Executive Jet Aviation, Inc. v. United States, 507 F.2d 508, 515 (6th Cir. 1974).
The requisite notice, therefore, informs the agency of the circumstances of the accident so that it may investigate the claim and respond either by settlement or defense. Adams v....
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